Pedro Lopez v. Angel Lopez and Hilary S. Lopez

• Court: District Court of Appeal of Florida
• Decided: October 23, 2024
• Docket: 3D2024-1439
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 23, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1439 Lower Tribunal No. 23-19101-CA-01 ________________

Pedro Lopez, Appellant,

vs.

Angel Lopez and Hilary S. Lopez, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.

Velazquez & Perez Perez Law Firm, and Gabriel Gonzalez Insua and Valerie M. Hassan, for appellant.

Dennis & Dennis, P.A., and Amarilis L. Dennis and J. Robert Dennis, for appellees.

Before EMAS, GORDO and LOBREE, JJ.

ON RESPONSE TO ORDER TO SHOW CAUSE LOBREE, J.

Upon consideration of appellant Pedro Lopez’s response to this court’s

order to show cause as to why this appeal should not be dismissed as one

taken from a non-final, non-appealable order, we dismiss the appeal for lack

of appellate jurisdiction.

BACKGROUND

The appellant filed a four-count complaint against the appellees, Angel

Lopez (“Angel”) and Hilary S. Lopez. In the complaint, the appellant alleged

that Angel induced their father to execute a quitclaim deed transferring real

property to Angel, while their father was incompetent and under duress.

Thereafter, in 2020, Angel transferred the property to himself and Hilary.

The appellant raised the following counts against the appellees: Count

I—Quiet Title, alleging he (appellant) holds an equitable title to the property

because he has been in continuous possession of an efficiency apartment

on the property since 1986, and that the quitclaim deed is deficient because

the grantee’s wife did not execute the quitclaim deed; Count II—Declaratory

Judgment; Count III—alternatively, Equitable Lien to Avoid Unjust

Enrichment; and Count IV—alternatively, Unjust Enrichment.

The appellees moved to dismiss the four counts in the complaint. The

trial court rendered an order granting the appellees’ motion to dismiss,

2 finding the counts are time barred by the applicable statutes of limitation.

The order, however, provides: “The plaintiff [appellant] has 20 days to file an

amended complaint.” This appeal followed.

After the appellant filed his notice of appeal, this court directed him to

show cause as to why this appeal should not be dismissed as one taken from

a non-final, non-appealable order.

ANALYSIS

In the response to our order to show cause, the appellant argues that

the order under review is a final, appealable order because the trial court’s

order dismissed his claims with prejudice. While he acknowledges that the

order dismissing the four counts also granted him twenty days to file an

amended complaint, the appellant asserts that the trial court granting him

leave to amend is inconsequential because judicial labor had ended as all

counts were dismissed.

In support of his argument, the appellant relies on cases that are

factually distinguishable. For example, he cites to Hallock v. Holiday Isle

Resort & Marina, Inc., 885 So. 2d 459 (Fla. 3d DCA 2004), for the proposition

that “[a] judgment or order is final when it adjudicates the merits of the case,

disposes of the pending action, and leaves nothing further to be done by the

trial court.” Id. at 461 (emphasis added). Here, the trial court did not dispose

3 of the pending action. Rather, it dismissed the four counts in the complaint

with leave to file an amended complaint within twenty days. Further, the

record shows that the appellant actually filed the amended complaint

asserting a single count for adverse possession. As such, the appellant’s

reliance on Hallock is misplaced.

The appellant further argues that Florida Rule of Appellate Procedure

9.110(k) allows a party to seek review of a partial final judgment where the

order under review “disposes of a separate and distinct cause of action that

is not interdependent with other pleaded claims.” His reliance on rule

9.110(k) is misplaced because the trial court has not entered a partial final

judgment in this case.

Finally, the appellant’s reliance on Gerber v. Vincent’s Men’s

Hairstyling, Inc., 57 So. 3d 935 (Fla. 4th DCA 2011), is also misplaced. In

Gerber, unlike the case before this Court, the trial court granted the motion

to dismiss “without prejudice,” stating that the plaintiff may not refile until the

conditions precedent for filing a claim under the sexual harassment statute

are met. Based on those facts, the Fourth District Court of Appeal

determined that the order was a final order because the “dismissal foreclosed

any remedy based in tort and effectively ended the litigation on the merits.”

Id. at 937. Once again, that is not the situation here, where the appellant

4 was given an opportunity to amend his complaint (and actually did so).

Because judicial labor has not come to an end, we disagree with the

appellant’s position. See ARP Acquisitions Corp. v. PHH Mortg. Corp., 337

So. 3d 873, 875 (Fla. 3d DCA 2022) (“The traditional test for finality is

whether the decree disposes of the cause on its merits leaving no questions

open for judicial determination except for execution and enforcement, if

necessary.” (quoting Weiss v. Weiss, 317 So. 3d 167, 169 (Fla. 3d DCA

2021)); see also Hancock v. Piper, 186 So. 2d 489, 490 (Fla. 1966) (holding

that “an order dismissing a cause but granting additional time in which to file

an amended complaint is nothing more than an interlocutory order”); Dade

Cnty. Classroom Tchrs’ Ass’n v. State Bd. of Educ., 269 So. 2d 657, 658

(Fla. 1972) (“An order of dismissal granting leave to amend is interlocutory

in nature until expiration of the amendment period and entry of final judgment

by the trial court.”). Accordingly, we dismiss the appeal for lack of appellate

jurisdiction because the order dismissing the four counts of the complaint

with leave to amend is a non-final, non-appealable order.

Appeal dismissed.